By: Tiffany Bentley & Ann Hetherwick Cahill
Welcome to the story of the Smiths and the Alexanders — made-up
people with a wild accumulation of fictional (but factual) circumstances
that raise all kinds of probate and fiduciary litigation issues. What
potential problems do you spot here? What are the arguments to be made
on all of these contentious issues? Stay tuned to Beyond the Will
throughout November and December as we dig deep into this family’s saga.
Johnny Smith and Jocelyn Smith were married in 1983 in Massachusetts.
They had two children, Randall Smith (born January 1, 1985) and Twyla
Smith (born March 3, 1987). Unfortunately, Jocelyn died in a tragic car
accident in 1995 with no estate plan in place.
At the time of her death, Jocelyn had a gross estate of approximately
$5,000,000 consisting primarily of individually held investments that
she had inherited from her parents. She also had a few minor accounts
held jointly with Johnny but no retirement accounts or life insurance
Johnny began dating Moira Alexander in 2000. Moira had two children
of her own, Alexis Alexander (born February 5, 1985) and David Alexander
(born October 8, 1989).
In 2005, Moira, Alexis, and David moved into the Smith home with
Johnny, Randall, and Twyla. They appeared to have minimal issues as far
as blended families go. Their children got along and each accepted the
other adult as a parental figure. As the children graduated and moved
out of the family home, they remained in frequent contact with both
Moira and Johnny and returned home for holiday and birthday
Moira and Johnny met with an estate planning attorney, Attorney
Mullens, in March of 2013 in order to have estate planning documents
prepared including wills, revocable trusts, health care proxies, durable
powers of attorney, and HIPPA waivers. Moira and Johnny were planning
on eloping the following month and thus told Attorney Mullens that they
were already married.
Attorney Mullens prepared estate planning documents for each of
Johnny and Moira. Each will stated that the testator was married and
left tangible items to the surviving spouse and otherwise to the
surviving children in equal shares. Children under both wills were
defined to include Randall, Twyla, Alexis, and David. The residue under
Johnny’s will poured over to The Johnny Smith Trust. The residue under
Moira’s will poured over to The Moira Alexander Trust. Moira was named
as Personal Representative under Johnny’s will followed by Randall as a
successor. Johnny was named as Personal Representative under Moira’s
will with Alexis named as successor. Through Johnny’s will, he exercised
a limited power of appointment that had been granted to him in a Family
Trust established by his parents, directing that income from that trust
be paid to his spouse, Moira, for her lifetime. That trust, by its
terms, would terminate upon the last to die of Johnny and his four
siblings, at which time the remaining principal would distribute
outright to the issue of Johnny and his siblings by right of
Johnny was the Donor and Trustee of The Johnny Smith Trust. Johnny
was the beneficiary of The Johnny Smith Trust during his lifetime. After
his passing, the Trust was structured to minimize potential
Massachusetts and Federal estate tax while providing for Moira’s sole
benefit during her lifetime. After Moira’s death, any remaining assets
would divide into equal shares and would be distributed outright to each
of Randall, Twyla, Alexis, and David. Moira and Attorney Mullens would
serve as successor Trustees after Johnny’s death. After Moira’s death
Attorney Mullens (or another attorney from his firm) would serve as sole
The provisions of The Moira Alexander Trust mirrored those of
Johnny’s Trust. Moira was the Donor and Trustee of her Trust and the
beneficiary during her lifetime. After her passing, the Trust would
minimize potential estate taxes while providing for Johnny during his
lifetime (if Johnny survived) and otherwise the assets would be divided
into equal shares and distributed outright to all four of the children.
If Johnny survived, he would serve as a Trustee along with Attorney
Mullens (or another attorney from the law firm).
Finally, Moira was named as agent under Johnny’s health care proxy
and durable power of attorney, followed by Randall. Johnny was named as
agent under Moira’s health care proxy and durable power of attorney,
followed by Alexis.
Moira and Johnny signed their wills and trusts in early April of
2013. Although Attorney Mullens encouraged them to sign all of their
documents, Johnny and Moira neglected to sign their health care proxies
and durable powers of attorney. They wanted to give more consideration
as to whether they wanted a child to serve as a co-attorney-in-fact with
the other spouse under the durable powers of attorney, and whether they
wanted language concerning the life-sustaining treatment in their
health care proxies.
Moira and Johnny postponed their plans to elope after Moira, a
doctor, had worked long hours caring for victims of the Boston Marathon
Unfortunately, Johnny began exhibiting signs of early-onset
Alzheimer’s in late 2017. His health deteriorated rapidly and by
mid-2018 Johnny was unable to function independently. Moira cared for
Johnny to the extent possible at their home and hired an in-home nurse
to assist as necessary.
That holiday season, Randall gave Twyla one of the newly-released
ancestry testing kits hoping that it might shed some light on their
father’s disease and their potential risks down the road. Twyla took and
submitted the ancestry test, set up an online profile and ultimately
forgot about it with everything else that was going on in her life.
In February of 2019, Twyla decided to surprise Moira and Johnny and
made an unplanned visit to her childhood home while in town for a bridal
shower. Twyla became concerned when she saw a brand new Mercedes SUV
sitting in the driveway. Twyla inquired and Moira explained that it was a
“gift” and not to ask so many questions. Twyla mentioned this to
Randall who at the time was roommates with David. He noted that David,
an avid baker, had recently come home with a brand new collection of Le
Creuset cookware. Randall hadn’t given this much thought but after his
conversation with Twyla wondered how David, a struggling artist, could
afford to spend that much money on items that simply supported a hobby.
Randall and Twyla became more concerned with how they believed Moira
was spending Johnny’s money. After Moira avoided their questions
multiple times, Randall and Twyla sought the advice of their own
attorney, Attorney Budd. Attorney Budd advised that they could petition
the court to have an independent conservator appointed to handle
Johnny’s finances. After filing a petition, and over Moira’s objection,
the court-appointed an independent conservator and independent guardian
The relationship Randall and Twyla had with Moira and her children
continued to deteriorate as their father’s health grew worse. After one
particularly difficult evening in February of 2020, Johnny had to be
rushed to the emergency room after he was completely unresponsive and
had labored breathing. The doctors advised that he likely had only a few
hours to live unless he was placed on life support. Moira believed that
Johnny did not want life-sustaining treatment and advised the doctors
to give him medicine to simply make him comfortable. When Randall
arrived he demanded that the doctors put his father on life-support.
Unfortunately, before any decision could be made, Johnny passed away.
Johnny died with a gross estate of $7,000,000 consisting of his
Massachusetts residence and a variety of investment and bank accounts
titled in his name, individually, a bank account with approximately
$75,000 held jointly with Moira, a life insurance policy payable to his
Trust with a death benefit of $500,000 and a 401k account in which Moira
was named the primary beneficiary followed by the four children equally
as contingent beneficiaries.
Moira turned to Attorney Mullens to probate Johnny’s estate and
prepare any necessary tax filings. Attorney Mullens was shocked to
discover that despite what he had been told and what was provided in
their wills, Moira and Johnny had never actually married. Attorney
Mullens filed a Petition in Probate Court to have Moira appointed
Personal Representative of Johnny’s Estate. Both Randall and Twyla filed
objections. In addition, Randall and Twyla engaged Attorney Budd to
present an argument that all provisions for Moira under the will and
trust should be disregarded given the fact that she was not actually
their father’s spouse, that their father’s tangible items should be
distributed in equal shares to them, and that the remainder of their
father’s estate should pass outright to the two of them (to the
exclusion of Alexis and David).
This argument enraged Moira and she engaged a new estate planning
attorney, Attorney Brewer, to prepare a new estate plan with the intent
to disinherit Randall and Twyla. Moira’s new will provided for tangible
items to be divided equally between her children, Alexis and David.
Moira amended and restated The Moira Alexander Trust and provided that
after her death, all assets would be divided into equal shares and
distributed outright to Alexis and David.
Meanwhile, Attorney Mullens was working to prepare the Massachusetts
Estate Tax Return for Johnny’s Estate. He wished to utilize the tax
planning methods that had been provided for through Johnny’s will and
trust and take advantage of the spousal deduction that could be taken on
any assets that passed to Moira as the surviving spouse either outright
or as held under Johnny’s trust for her benefit during her lifetime.
Around the same time, Stevie Jenkins, a young woman living in
Colorado, contacted Twyla after her own ancestry test results indicated
that she and Twyla could be half-sisters, sharing Johnny’s genetic
profile. Twyla, although shocked at the discovery, was interested in
getting to know Stevie but was concerned about whether Stevie might have
any rights to Johnny’s assets under his own estate plan or under the
Family Trust that Johnny’s parents had established.
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